On the morning of May 19, the date set for trial, the state requested that the court
either set the case over or dismiss the case without prejudice because a police officer,
whom the prosecutor described as a "critical witness," had "called in this morning
injured." Defense counsel, while not disputing the prosecutor's characterization of the
putative witness, moved for dismissal with prejudice. The following colloquy ensued:

"[DEFENSE COUNSEL]: * * * [I]t's my understanding from reviewing the
history of this case--it's a November '98 arrest--the state has had three
setovers and I believe this was a date certain trial date on their behalf.
That's what [the prosecutor] candidly told me.

"The injury with the police officer--I'll let [the prosecutor] explain this--it's
not like a recent injury but it's like a chronic ankle problem that is going to
require surgery.

"Apparently it got worse within the last two days, it now requires some
surgery, and I believe the state is unable to assure us of a future availability
date because of this.

"I'll let him expand on that a little bit, but it sounds like we may be in for a
period of unavailability for this witness, so that's why I move to dismiss
with prejudice.

"* * * * *

"[PROSECUTOR]: If [the court is] considering to dismiss with prejudice, I
would--I have case law on point for this type of situation where that is too
egregious of a remedy for this fact pattern.

"There are cases on point where critical witnesses weren't available on [the]
day of trial and where the trial court dismissed with prejudice and that's,
therefore, overruled by the Court of Appeals.

"What the defense needs to show is some prejudice, and what I think here
that probably in all fairness is the proper decision to make is to dismiss this
case and then the burden is on the state that we have to refile and then we
have to refile knowing that we're going to get that witness and then we start
setting dates.

"I do have the home telephone number of that officer. I brought that to
court this morning. I had a conversation with him this morning, and if the
Court is so inclined, to inquire as far as the nature of his injury and it will
confirm that he's unable to walk and he can't come to court today and he's
most likely going to have surgery. We do not know what that course of
treatment is going to be after surgery.

"For that reason, in all fairness, I cannot say when we'll be ready. We
cannot go to trial without that witness, and [defense counsel's]--

"[THE COURT]: Did you say this is the third trial setting?

"[PROSECUTOR]: No. Well, as far as trial settings, we've had many trial
settings. The state's had three setovers on pretrial conferences. We've
asked for three setovers and we've been granted--

"[DEFENSE COUNSEL]: I've not opposed any of those.

"[PROSECUTOR]: That's correct, and the defense has received two
setovers on pretrial conference, so altogether there's probably been six trial
settings for this case, five which were postponed until today. Today is a
date certain for the state, and even with that, Your Honor, it doesn't rise to
the level where the remedy is dismissal with prejudice.

"[THE COURT]: Is this a date certain? You were to go today irrespective
of circumstances?

"[DEFENSE COUNSEL]: I'm relying upon the candor of [the prosecutor]
in reviewing his file note in saying so. I believe the answer to that is--

"[THE COURT]: Dismissed with prejudice.

"[PROSECUTOR]: Your Honor, before we get to that * * * I would like
for you to review the cases before you make that decision, that the defense
needs to show that they're prejudiced before they get a dismissal with
prejudice.

"[THE COURT]: Appeal me. I have ruled."

The state appeals, arguing that, under the analysis most recently
announced in State v. Gunder, 154 Or App 332, 964 P2d 265 (1998), and State v.
Parliament, 164 Or App 707, 995 P2d 544 (2000), the trial court abused its discretion in
ordering a dismissal with prejudice. We agree.

Gunder synthesizes the analysis:

"The [case law has] identified, albeit not systematically, three factors
that trial courts are to consider in exercising discretion under ORS 136.130:
(1) Did the prosecutor's conduct constitute inexcusable neglect; (2) Would
the defendant suffer actual prejudice due to the delay; and (3) Would the
defendant's right to a speedy trial be compromised by the delay?

"Our prior decisions have not expressly discussed the appropriate
relationship or interplay among those three factors. However, implicit in
those decisions is a principle that we now make explicit: Although trial
courts are to consider all three factors in determining whether to dismiss
with prejudice under ORS 136.130, our formulation does not require that
each of the factors must be satisfied; nor does it mean that any one of the
factors, by itself, is necessarily sufficient. Rather, the analysis contemplates
a 'mix-and-match' or 'sliding-scale' assessment, in which, depending on the
strength of any given factor or combination of factors, dismissal with
prejudice may be warranted. As long as the trial court's assessment of the
factors is within the range that a reasonable judge might reach, there is no
abuse of discretion." 154 Or App at 339 (emphasis in original; citations
omitted).

See also Parliament, 164 Or App at 711-12 (describing analysis).

Here, we need not engage in the sort of "mix-and-match" or "sliding-scale" assessment contemplated in Gunder, because none of the Gunder factors favoring
dismissal with prejudice is present in this case. First, there is no showing in this record of
"inexcusable neglect" by the prosecutor. Rather, the prosecutor's uncontroverted
representation was that the officer had "called in this morning injured" and defense
counsel acknowledged that the officer's condition "apparently got worse within the last
two days." Thus, there is no implication that the prosecutor knew, or reasonably should
have known, that the state would be unable to proceed until very shortly before trial. See,
e.g., Gunder, 154 Or App at 339-40 (reversing dismissal with prejudice where the
prosecutor had not subpoenaed a necessary witness and that failure "was an error caused
by the [prosecutor's] misunderstanding of the law": Although the delay "was the result of
the [prosecutor's] neglect[,] * * * [t]here is no showing that the error was intentional or
calculated to disadvantage defendant by lengthening the pretrial delay, and, in all events,
it was not egregious."); State v. Daniel, 98 Or App 695, 698, 780 P2d 784, rev den 308 Or
660 (1989) (reversing dismissal with prejudice where, inter alia, the ability to secure the
complaining witness's attendance at trial was not within the district attorney's control).

Finally, there is no indication in this record that defendant's right to
speedy trial would be compromised by the delay. Approximately six months had passed
from the date of defendant's arraignment to the May 19 trial date. Moreover, as in
Gunder, "no showing has been made on this record as to the length of the delay between
the [trial date] * * * and any potential subsequent trial date on refiled DUII charges."
Gunder, 154 Or App at 341.

In sum, none of the Gunder factors favors a dismissal with prejudice. As
defendant acknowledges, there is a "line of precedent that seems to stand in his way of
prevailing in this appeal." Nevertheless, defendant proposes that we "graft" a fourth
criterion onto the three Gunder factors--viz, "Does the state's inability to proceed
represent a substantial disregard of prior court direction that it do so?" That is, defendant
argues that because the final trial setting was a "date certain," that factor should militate
decisively in favor of affirming the trial court's exercise of discretion. Specifically,
defendant urges us to "lower the bar" of our precedents "so that the trial court retains
some authority to control the proceedings that are brought before it."

We are not unmindful of, or unsympathetic to, the concerns that
defendant identifies. Nevertheless, we need not decide whether defendant's proposed
"fourth factor" is appropriately incorporated into our analysis because it is not decisive
where, as here, there has been neither inexcusable neglect by the state nor actual prejudice
to defendant. In such circumstances, a trial court's interest in regulating its own docket
cannot override the compelling public interest in the enforcement of the criminal law.
See, e.g., State v. Hadsell, 129 Or App 171, 174-75, 878 P2d 444, rev den 320 Or 271
(1994) ("[D]ismissal under the statute is reserved for severe situations because the
dismissal of a charging instrument frustrates the public interest in having the prosecution
of crimes occur in order to promote the protection of the public and the rehabilitation of
offenders."); State v. Bethune, 51 Or App 271, 273, 624 P2d 1113 (1981) ("[D]ismissal is
a drastic remedy to be reserved for severe situations. Dismissal frustrates the public's
interest in the orderly administration of criminal justice."); State v. Williams, 17 Or App
43, 48, 520 P2d 462 (1974) ("The power to bar prosecution, with all its attendant public
consequences, is a drastic one to be exercised only in exceptional circumstances."). The
trial court abused its discretion in dismissing the DUII charge with prejudice.

Order of dismissal with prejudice reversed; remanded for entry of order
of dismissal without prejudice.

"If, when the case is called for trial, the defendant appears for trial
and the district attorney is not ready and does not show any sufficient cause
for postponing the trial, the court shall order the accusatory instrument to be
dismissed, unless, being of the opinion that the public interests require the
accusatory instrument to be retained for trial, the court directs it to be
retained."

ORS 136.130 provides:

"If the court orders the accusatory instrument to be dismissed and the
instrument charges a felony or Class A misdemeanor, the order is not a bar
to another action for the same crime unless the court so directs. If the court
does so direct, judgment of acquittal shall be entered. If the accusatory
instrument charges an offense other than a felony or Class A misdemeanor,
the order of dismissal shall be a bar to another action for the same offense."